Pending
before the court are a Motion to Dismiss filed by defendants
David Miller, Charles Legg, and Margaret Clifford [ECF No.
32], a Motion to Dismiss filed by defendant Daniel Hahn [ECF
No. 41], and a Motion to Dismiss filed by defendants Nancy
Jackson, Tim Perkins, William Sutphin, and Joe Wimmer [ECF
No. 45]. By Standing Order, this matter is referred to the
Honorable Dwane L. Tinsley, United States Magistrate Judge
for submission of proposed findings and a recommendation for
disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). For
reasons appearing to the Court, it is hereby
ORDERED that the referral of this matter to
the Magistrate Judge is WITHDRAWN.

I.
The Plaintiff's Allegations and the Defendants'
Motions to Dismiss.

On
September 3, 2015, the plaintiff filed his pro se
Complaint alleging violations of his rights under the Eighth
and Fourteenth Amendments to the United States Constitution
and Article III, § 5 of the West Virginia Constitution,
as well as state law claims of assault and battery, arising
out of a use of force against him on March 29,
2014.[1] The plaintiff alleges that he was walking
in the dayroom of Stuart Hall, side one, at the Mount Olive
Correctional Complex (“MOCC”), when other inmates
began clapping because defendant Nancy Jackson was relieved
from her assigned post on that unit. Compl. ¶¶
16-18 [ECF No. 2]. The plaintiff denies that he participated
in the clapping. Id. ¶ 19.

The
plaintiff further alleges that, approximately 10-15 minutes
later, defendants Joe Wimmer, Tim Perkins, David Miller,
Charles Legg, William Sutphin, Margaret Clifford, and Daniel
Hahn entered the unit and gave verbal orders for the inmates
to “lock down.” Id. ¶ 20. The
plaintiff verbally expressed his displeasure with this order,
but states that he was complying with it. Id. ¶
22. The plaintiff further alleges, however, that
notwithstanding his attempted compliance, defendant Wimmer,
placed him in a rear choke hold and arm bar, without warning,
and then slammed the plaintiff's face into a cell door
and then slammed his face and chest on the concrete floor.
Id. ¶¶ 23, 26. The plaintiff denies that
he was a threat to himself, other inmates, staff or state
property, and that he never resisted. Id.
¶¶ 24, 25, 27. The plaintiff further alleges that
several more minutes passed before he was placed in
mechanical restraints. Id. ¶ 29.

The
plaintiff alleges that defendants Wimmer, Perkins and Sutphin
were the officers who used physical force against him, and
that these defendants repeatedly yelled at him to
“fight back” and “now run your fuck'n
mouth” in an effort to provoke and belittle him.
Id. ¶ 35. He further alleges that the remaining
defendants, Miller, Legg, Clifford, Jackson and Hahn, had a
realistic opportunity to intervene to prevent or stop the
beating, but failed to do so. Id. ¶¶ 32,
33. The plaintiff contends that, as a result of the
defendants' conduct, he suffered, and continues to suffer
from, swelling to his face and jaw, breathing problems, and
sharp pain and limited movement in the right shoulder and
arm. Id. ¶ 34. He seeks declaratory and
injunctive relief, as well as monetary damages from the
defendants, who are sued in both their individual and
official capacities.

On
April 28, 2017, defendants David Miller, Charles Legg, and
Margaret Clifford, by counsel, filed a Motion to Dismiss [ECF
No. 32] and a Memorandum of Law in support thereof [ECF No.
33], asserting that the plaintiff failed to exhaust the
available administrative remedies prior to filing his
Complaint, that these defendants are entitled to qualified
immunity on the plaintiff's claims against them, and that
the Complaint fails to state a claim upon which relief can be
granted. On June 15, 2017, the plaintiff filed a Response to
the Motion to Dismiss filed by defendants Miller, Legg, and
Clifford [ECF No. 38], along with a Declaration [ECF No. 39]
and a Memorandum of Law [ECF No. 40] disputing each of the
defendants' grounds for dismissal. On June 26, 2017,
defendants Miller, Legg, and Clifford filed a Reply [ECF No.
43].

On June
26, 2017, defendant Daniel Hahn filed a Motion to Dismiss
[ECF No. 41] and a Memorandum of Law in support thereof [ECF
No. 42], which also asserts that the plaintiff failed to
exhaust the available administrative remedies prior to filing
his Complaint, that Hahn is entitled to qualified immunity on
the plaintiff's claims against him, and that the
Complaint fails to state a claim upon which relief can be
granted. Despite being given additional time to do so, the
plaintiff has not responded to this motion.

On July
6, 2017, defendants Nancy Jackson, Tim Perkins, William
Sutphin and Joe Wimmer filed a Motion to Dismiss [ECF No.
45], which similarly asserts that the plaintiff failed to
exhaust his administrative remedies, that these defendants
are entitled to qualified immunity on the plaintiff's
claims against them, and that the Complaint fails to state a
claim upon which relief can be granted. On July 24, 2017, the
plaintiff filed a Response to this Motion to Dismiss [ECF No.
48] and a Memorandum of Law [ECF No. 49], disputing the
defendants' grounds for relief. On August 1, 2017,
defendants Jackson, Perkins, Sutphin and Wimmer filed a Reply
[ECF No. 52]. The specific arguments of the parties will be
discussed as necessary in section III.

II.
Standard of Review

The
defendants have filed Motions to Dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. However,
the plaintiff has filed a Declaration addressing the issue of
exhaustion of administrative remedies and attaching one of
the prison grievances he filed with respect to the incident
that is the subject of his Complaint. Under Federal Rule of
Civil Procedure 12(d), “if, on motion under 12(b)(6) .
. ., matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.” Fed.R.Civ.P. 12(d).
Accordingly, the court will construe the defendants'
motions herein as motions for summary judgment under Rule 56.

To
obtain summary judgment, the moving party must show that
there is no genuine dispute as to any material fact and that
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In considering a motion for summary
judgment, the court will not “weigh the evidence and
determine the truth of the matter.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead,
the court will draw any permissible inference from the
underlying facts in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986). Although the court
will view all underlying facts and inferences in the light
most favorable to the nonmoving party, the nonmoving party
must offer some concrete evidence from which a reasonable
factfinder could find in the nonmovant's favor.
Anderson, 477 U.S. at 252.

III.
Discussion

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
threshold issue before the Court is whether the plaintiff
properly exhausted the available administrative remedies
prior to filing his Complaint. A prison inmate&#39;s failure
to exhaust administrative remedies is an affirmative defense,
and a failure to exhaust administrative remedies warrants
judgment as a matter of law for the defendants. Jones v.
Bock, 549 U.S. 199, 212 (2007). All of the defendants
have raised the failure to exhaust administrative remedies as
a ground for dismissal herein. While the exhaustion issue is
not jurisdictional, the district court must resolve ...

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